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August 5, 2005

Revised draft of Reconceptualizing Sentencing

As noted in this post, I had the honor giving the Keynote Address at The University of Chicago Legal Forum's 19th Annual Symposium last November. I now have received the final page proofs for my follow-up article, entitled "Reconceptualizing Sentencing," which is slated for publication in the next issue of theUniversity of Chicago Legal Forum. I previously set out the article's introduction here, and the full revised draft is available via SSRN). Below I provide a few paragraphs from the conclusion:

The modern revolution of sentencing laws and practices marks one of the most dynamic and important law reform stories in recent American legal history. But, as detailed in this Article, one hallmark of this revolution has been a conceptual shallowness that has negatively impacted the work of all the institutions that have had a hand in the revolution. Placed in proper historical and conceptual context, we can better see that the U.S. Supreme Court's recent work in Blakely and Booker is just the latest dramatic chapter in a lengthy, dynamic, and conceptually confused story about the modern evolution of sentencing rules and practices.

A chief lesson to be drawn from Blakely and Booker and the dramas that have surrounded these decisions, is that policymakers, courts, and academics are long overdue to take up the task of reconceptualizing modern sentencing. Attentiveness to sentencing concepts such as limiting retributivism, parsimony and the offense/offender distinction perhaps could help begin the overall — and overdue — project of broadly reconceptualizing modern sentencing reforms. But, in the wake of the turmoil and uncertainty produced by Blakely and Booker, the specifics of the project of reconceptualizing modern sentencing are less important than just an appreciation that the project must begin.